by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of the Public Law Project
~ 2018 Updated Edition ~
6.1 Once the appeal has been lodged and a certificate of fee satisfaction issued by the Lord Chancellor (see 4.4A-4.4G), the Tribunal will send a copy of the notice of appeal and any accompanying documents to the Home Office and issue a notice of hearing and directions.
6.2 The 2014 Rules no longer lay down time limits for the listing of the hearing but in practice asylum appeals continue to be listed, initially at least, within about a month of lodging the appeal, although the timescale can vary between hearing centres.
6.3 Rule 24(3) requires that the Respondent's bundle and any statement as to any change in or addition to the Respondent's reasons for opposing the appeal under rule 24(2) (see chapter 10) must (if no specific directions are given) be provided within 28 days of the date on which the Tribunal sent the Respondent a copy of the notice of appeal and any accompanying documents .
6.4 The Senior President's Practice Directions set out the standard directions. They state that:
"7.5 In most cases, including those appeals where a CMR hearing is to be held, the Tribunal will normally have given to the parties the following directions with the notice of hearing:
(a) not later than 5 working days before the full hearing (or 10 days in the case of an out-of-country appeal) the appellant shall serve on the Tribunal and the respondent:
(i) witness statements of the evidence to be called at the hearing, such statements to stand as evidence in chief at the hearing;
(ii) a paginated and indexed bundle of all the documents to be relied upon at the hearing with a schedule identifying the essential passages;
(iii) a skeleton argument, identifying all relevant issues including human rights claims and citing all the authorities relied upon; and
(iv) a chronology of events;
(b) not later than 5 working days before the full hearing the respondent shall serve on the Tribunal and the appellant a paginated and indexed bundle of all the documents to be relied on at the hearing, with a schedule identifying the relevant passages, and a list of any authorities relied upon."
6.5 When the Case Management Review Hearing ('CMRH') was introduced in 2005, one was held in every asylum appeal; the practice directions stated that one would be held unless the Tribunal otherwise directed. However, the failure of the Home Office to engage fully in the CMRH process, for example, by refusing to narrow issues and by failing to serve its bundle in advance of the hearing, gradually led to decisions by regional centres to abandon this practice. In January 2009, the Tribunal announced its intention to extend a pilot of telephone CMRHs and at some hearing centres, these became the norm. The current Practice Directions no longer apply any presumption in favour of holding a CMRH in asylum appeals, instead allowing for one to take place if the Tribunal so directs.
6.5A The practice now varies between (and sometimes within) hearing centres. There are three broad alternatives: a CMRH (sometimes referred to as a Pre-Hearing Review ('PHR')) conducted at a hearing at which both parties are present; a telephone CMRH; and, most commonly, a paper PHR, conducted on the basis of written responses to directions sent out with the notice of hearing. An oral PHR is normally held in deportation cases. For telephone hearings, which are now relatively uncommon, fairness requires that all parties should attend by telephone rather than in person. The then President of the First-tier Tribunal IAC told the Presidents' Stakeholder Forum on 21st April 2010 that she had reminded judges that it was unacceptable to invite the Home Office to appear personally and appellants only by phone, and that judges had been reminded not to discuss a case with the HOPO until the appellant's representative was online. However, reports suggest that it remains common practice in telephone CMRHs for the HOPO to be present in the hearing room with only the appellant's representative attending by telephone. If you believe that this has happened, you may object and if appropriate ask that the hearing be adjourned to a date when both parties can attend in person.
6.5B It is sensible to request a CMRH/ oral PHR if the issues in your case are particularly complicated, you are seeking unusual directions about which the judge may have questions and oral argument is likely to be more persuasive, or your client is a child or particularly vulnerable.
6.5C In such circumstances, if your appeal is listed at a hearing centre that you know is not routinely conducting CMRHs or if you receive a paper PHR form, you will have to write asking for a CMRH and justifying your request by reference to the complexity of the issues, the directions which you require, or the need to make arrangements to deal with a vulnerable adult. You should draw attention to the Guidance Note on Child, Vulnerable Adult and Sensitive Witnesses if appropriate (see para 6.23 below). The need for a CMRH in order to consider bespoke directions in such cases was emphasised by the Senior President in AM (Afghanistan)  EWCA Civ 1123 (para 28). If the date for the final hearing has been listed and you need more time, you can request that that hearing date is instead used for a CMRH. Your request will be stronger if accompanied by a draft of any directions you are seeking; of course if the Tribunal is content to simply make those directions you may not need to insist on an oral hearing. Be aware, however, that in practice requesting a CMRH can lead to substantial delay in listing the final hearing. It is not unusual for there to be a delay of several months in relisting the oral hearing after a CMRH.
6.6 The Practice Directions warn against non-attendance at a CMRH:
"7.2 It is important that the parties and their representatives understand that a CMR hearing is a hearing in the appeal and that the appeal may be determined by the Tribunal under the relevant Procedure Rules if a party does not appear and is not represented at that hearing."
6.7 The relevant rules in the First-tier Tribunal are rule 25(2), which allows the Tribunal to determine the appeal without a hearing, and rule 28 (hearing an appeal in the absence of a party). If due to unforeseen circumstances, you cannot attend the CMRH (whether it is by telephone or in person) it is vital that you provide a prompt explanation to the Tribunal to avoid either of these courses. Neither course can be taken if your client attends although this should not of course be used as a basis to avoid the attendance of the representative.
6.8 The AIT Guidance Note on CMRHs (which is published on the Tribunal's website as one of the "Guidance Notes for the former AIT that are now relevant to FTTIAC") states that
"It is highly desirable that the representative for the appellant who attends the CMR hearing should be the same individual who will appear at the substantive hearing. If this is not the case, then an explanation should be sought and the expectation that the same individual will attend both hearings should be made clear."
6.9 While there are obvious benefits in the advocate who will conduct the full hearing also conducting the CMRH, it is not always practical and is less important in straightforward cases. However, it is vital that if a different advocate is briefed for the CMRH, that person is properly briefed to deal with the issues that will arise.
6.10 Some of these issues are set out in the Practice Directions:
"7.3 In addition to any information required by First-tier rule 19 (form and contents of notice of appeal), the appellant before the First-tier Tribunal must provide that Tribunal and the respondent at the CMR hearing with:
(a) particulars of any application for permission to vary the grounds of appeal;
(b) particulars of any amendments to the reasons in support of the grounds of appeal;
(c) particulars of any witnesses to be called or whose written statement or report is proposed to be relied upon at the full hearing; and
(d) a draft of any directions that the appellant is requesting the Tribunal to make at the CMR hearing.
7.4 In addition to any documents required by relevant Procedure Rules,, the ... respondent ... must provide the Tribunal and the appellant at the CMR hearing with:
(a) any amendment that has been made or that is proposed to be made to the notice of decision to which the appeal relates or to any other document served on the person concerned giving reasons for that decision; and
(b) a draft of any directions that the respondent is requesting the Tribunal to make at the CMR hearing."
6.11 It is not necessary to provide witness statements at the CMRH. The standard directions require these to be provided a week before the full hearing. However, you are expected to be able to give a list of witnesses so far as possible. This is obviously relevant to the time estimate. If the witness has sought asylum at any stage, it may be useful to be able to point out at the full hearing that the Home Office was notified of the witness at the CMRH and had the opportunity to review the file if it wished. In light of the guidance given in Nare (evidence by electronic means) Zimbabwe  UKUT 443 (IAC) about the giving of evidence by electronic means (see para 15.24B-C), it will be best practice to raise any likely application for a direction permitting evidence to be given by electronic means at the CMRH.
6.12 The Tribunal will usually want to know whether it is intended to rely on any expert evidence. The form (attached to the AIT Guidance Note) that the judge is required to complete asks specifically about medical evidence.
6.13 If there is doubt about whether the expert evidence will be available in time to comply with the standard directions (or even before the full hearing), it is advisable to ask the judge to note this on the record of proceedings or on the directions sheet. If it is subsequently necessary to request an adjournment of the full hearing because the expert or medical evidence is not ready, you will be able to demonstrate that you raised the issue in good time.
6.14 The grounds of appeal should be reviewed prior to the CMRH so that any application to amend them can be made at the CMRH (see chapter 4). This will be particularly important where you seek to raise a new 'ground' in appeals where the 2014 appeals regime applies, so as to give the Home Office the opportunity to consider the ground before the substantive hearing, and reduce the likelihood of it withholding consent to the Tribunal considering it (see 5.6A-C).
6.15 The Practice Directions also invite 'particulars of any amendments to the reasons in support of the grounds of appeal' (para 6(3)(b)). However, unlike the grounds of appeal, the Procedure Rules impose no requirement to obtain permission to amend the reasons in support of the grounds (and the 2014 Procedure Rules no longer require reasons to be given).
6.16 The standard directions require a skeleton argument to be lodged only a week before the full hearing. Nevertheless, you should be prepared to address the checklist appended to the Guidance Note which the judge is require to complete at the CMRH. The checklist includes space to indicate the Geneva Convention reason and article of the ECHR relied upon.
6.17 If the Tribunal presses for more particulars of your case than you are able to provide at the CMRH, it can be referred to the AIT Guidance Note. This sounds the following note of caution against unrealistic requests to the appellant to concede or abandon points when the preparation of her case is not complete:
"18. One of the perceived advantages of the introduction of CMR hearings was to allow the Tribunal to identify the issues in the appeal and focus the parties on those issues. This requires thorough preparation by the immigration judge prior to the hearing.
19. There are constraints, however, on how far the issues can be narrowed and defined. The Appellant's representative will probably still be in the process of assisting the appellant in preparing the case. Until the appellant's witness statement is finalised, it may be difficult for aspects of the appellant's case to be conceded or reduced in significance."
6.18 The CMRH ought to provide an excellent opportunity to clarify the Home Office's case (see chapter 9) and the Tribunal should encourage this, given that its case will ordinarily be complete by this stage. However, as noted above, one of the reasons for the Tribunal moving away from automatic CMRHs in asylum cases was its frustration at the failure of the Home Office to engage properly in the process.
6.18A If, unusually, the Home Office does engage in the CMRH and agreement is reached which narrows the issues, particularly if it does not reflect what is in the refusal letter, it is important to ensure that an agreed note of the issues is prepared at that stage. In Kalidas (agreed facts – best practice)  UKUT 00327 (IAC), the Tribunal emphasised the importance of ensuring that where a concession has been made it is reduced to writing so as to avoid any misunderstanding between the parties and the Tribunal as to the nature of the issues in the case. It gave guidance encouraging the narrowing of issues at CMRHs and how appeals should then proceed where the issue could be narrowed:
29. Parties should consider at as early a stage as possible, and preferably in advance of any CMR, what agreement can be reached on the scope of the issues and what concessions can be made. They should bear in mind the purposes of CMRs, set out in the Senior President's Practice Directions, paragraph 7. They should assist the First-tier Tribunal to produce in terms of PD 7.8:
… written confirmation of:-
(a) any issues that have been agreed at the CMR hearing as being relevant to the determination of the appeal; and
(b) any concessions made at the CMR hearing by a party.
30. If credibility is not in issue, it will often be unnecessary to submit a further statement from an appellant, or to call her to give evidence. If this approach is taken, the hearing judge should be told why this approach is taken.
31. Any further statement should not be a rehash of what has already been said. It should be directed to the remaining live issues.
32. If an appellant produces a skeleton argument or other written submission (which is often desirable) it should not contain just expressions of general law which might apply to any case. It should deal with the live issues in the actual case.
33. A judge who accepts and records concession or agreement on the facts should consider whether to treat the case as part-heard, and reserve to herself for further hearing. She is best placed to understand the exact scope of the agreement. There may be future difficulty for another judge who is faced with partial agreement on evidence, if the challenge to the rest raises questions about the whole.
34. Representatives have a joint responsibility to draw the attention of the judge at the outset of the substantive hearing to the extent of agreement reached, and the nature of the decision still required.
35. Judges, unless in exceptional circumstances, do not look behind factual concessions. Such exceptional circumstances may arise where the concession is partial or unclear, and evidence develops in such a way that a judge considers that the extent and correctness of the concession must be revisited. If so, she must draw that immediately to attention of representatives so that they have an opportunity to ask such further questions, lead such further evidence and make such further submissions as required. An adjournment may become necessary.
6.19 The AIT Guidance Note also warns against the Tribunal determining any substantive disputed issues at the CMRH:
"20. It should also be borne in mind that unless the same immigration judge conducts the substantive hearing as conducts the CMR hearing, the earlier immigration judge has no power in law to exclude from consideration any issues which the immigration judge at the substantive hearing may consider relevant. Under no circumstances should the Tribunal at the CMR hearing purport to determine any substantive issues in dispute, such as the appellant's nationality, where the appeal is proceeding to a full hearing, unless the issue in question has been expressly agreed between the parties."
6.20 The Guidance Note further states that:
"25. It is always worth ascertaining whether the appellant has any family members in the UK, and, if so, whether they are dependants or have claimed asylum themselves. It is desirable to hear appeals by members of the same family together, in terms of rule 20, but not if this will lead to a lengthy or indefinite delay in hearing one of the appeals.
26. Where a family member has already had an appeal, details of this should be made available, along with any determination, unless the determination has been over-turned. The findings made in the earlier determination, so far as relevant and still valid, will have to be taken into account in the later appeal. (See TK (Consideration of Prior Determination - Directions) Georgia  UKIAT 00149.)"
6.21 See chapter 15 as to combined hearings and calling evidence from a family member. TK (Consideration of Prior Determination - Directions) Georgia  UKIAT 00149 would not appear to be authority for the proposition that the determination of family members who are not being called as witnesses must be taken into account in the way envisaged in the Guidance Note.
6.22 No definition of 'family member' is given. It seems unlikely (and unreasonable) that representatives should be intended to find and produce determinations in cases of relatives which do not involve the same facts. Note that there is no requirement for permission to adduce the determinations of family members (para 15.7).
6.23 The Guidance Note on Anonymity Directions indicates that the need for anonymity should be reviewed at the CMRH and you should raise this, assuming your client wants anonymity. You should also consider in advance of the CMRH whether your client is vulnerable or whether there are any concerns about her capacity to give you instructions or give evidence (para 11.22-11.32). If so, the CMRH is the appropriate time to raise these concerns with the Tribunal and seek directions. Joint Presidential Guidance Note No. 2 of 2010 on Child, Vulnerable Adult and Sensitive Appellants recommends that "potential issues and solutions should be identified at a CMRH or pre hearing review and the case papers noted so that the substantive hearing can proceed with minimal exposure to trauma or further trauma of vulnerable witnesses or appellants." It sets out a list of matters to be considered at the CMRH or at the start of the substantive hearing if there was no CMRH. This Guidance Note was explicitly endorsed by the Court of Appeal in AM (Afghanistan)  EWCA Civ 1123. One of the key features of the Guidance emphasised by the Court of Appeal in AM (Afghanistan) was the importance of early identification of vulnerability. The Senior President noted that (para 32):
… the primary responsibility for identifying vulnerabilities must rest with the appellant's representatives who are better placed than the Secretary of State's representatives to have access to private medical and personal information.Appellant's representatives should draw the tribunal's attention to the PD and Guidance and should make submissions about the appropriate directions and measures to be considered e.g. whether an appellant should give oral evidence or the special measures that are required to protect his welfare or make effective his access to justice.
6.23A The Joint Presidential Guidance Note advises the Tribunal on particular steps to be taken to ensure that "the substantive hearing can proceed with minimal exposure to trauma or further trauma of vulnerable witnesses and appellants" (para 4). It recommends a number of steps, including "rearrangement of furniture to enable a child friendly or less formal structure eg all on the same level" and ensuring that "the time estimate provided allows for special arrangements eg frequent breaks to ensure adequate concentration levels...". The Senior President's Practice Direction on Child, Vulnerable Adult and Sensitive Witnesses advises Tribunals to consider allowing evidence to be given by video link or other means, or to appoint a person "who has the appropriate skills or experience in facilitating the giving of evidence" by such a witness. The IAA Gender Guidelines suggested rearranging the hearing room to make it less formal, giving evidence via video link, provision of a female interpreter, or an all-female court. The latter involves not only a female judge but the Home Office being directed to provide a female HOPO. Note, however, that anecdotal but consistent reports indicate that some of the worst examples of offensive cross-examination by HOPOs of victims of rape have occurred in the context of an all-female court. The Joint Presidential Guidance Note now indicates that any request for a single gender Tribunal should be considered but advises judges to "bear in mind that sensitive issues may not be the subject of questions or core to the evidence".
6.24 The Practice Directions provide for a note to be provided to the parties at the end of the CMRH as follows:
"7.8 In addition to the [standard] directions ... , at the end of the CMR hearing the Tribunal shall also give to the parties written confirmation of:
(a) any issues that have been agreed at the CMR hearing as being relevant to the determination of the appeal; and
(b) any concessions made at the CMR hearing by a party."
6.25 Where the Tribunal dispenses with a CMRH and holds a paper PHR it will send the appellant a "Reply Notice", which the appellant is directed to complete and return by a specified date in advance of the PHR by post or fax. The notice warns that a failure to complete the reply notice in time constitutes a breach of directions which could result in the appeal being decided without a hearing under rule 25(1)(e) (see the discussion at 7.6-7.13 as to the limited circumstances in which this power should be used). The Home Office is directed to comply with para 7.4 of the Practice Directions (see para 6.10 above) by the date of the PHR.
6.26 The Reply Notice asks the Appellant to confirm whether she still wants an oral hearing, whether she intends to give oral evidence and/or to call witnesses (and if so, how many, and to provide their details), whether she intends to send more evidence for her appeal (and if so what); whether she intends to call expert witnesses; whether an interpreter is required (and if so, in what language); any further information "you wish to provide to the Tribunal regarding your appeal" and details of any other asylum appeals by other family members. Where the appellant is represented, there is a section for the representative to give a time estimate for the appeal, indicate whether funding has been secured, and give details of his own and the appellant's current address.
6.27 It is thus clear that the Reply Notice is intended to supply the Tribunal with all the information which the appellant would normally be expected to provide at a CMRH. You should review the AIT's Guidance Note on CMRHs and the advice above to see whether there are any other matters which you would want to raise with the Tribunal at this stage in the absence of a hearing. Consider whether to request a CMRH. Any application for special measures to be put in place for children or vulnerable adults, for the appointment of a litigation friend, or to vary the grounds of appeal should also be made at this stage if practical.
6.28 The deadline for serving the Reply Notice is normally very soon after the notice of hearing is sent out and you may not yet be in a position to provide all of the information requested. Submit the form by the deadline even if you cannot answer all the questions and explain the omissions. Otherwise, there is a risk of the Tribunal determining the appeal without a hearing. Just as with CMRHs, if you are not in a position to confirm that you will be ready to proceed on the given date for the substantive hearing, you should indicate this.